2002-06-05 04:00:00 PDT Washington -- For the first time, federal prosecutors explicitly accused John Walker Lindh on Tuesday of being partly responsible for the slaying of CIA agent Johnny "Mike" Spann during an Afghan prison uprising in November.

In a bluntly worded 32-page motion, the prosecutors said the Marin County man accused of participating in a conspiracy to kill Americans overseas and of providing material support for terrorists can be blamed directly for Spann's death under the law of conspiracy.

"The fact that we do not have evidence that Lindh wielded the weapon that fired the bullet that killed Spann has been taken by the defense as an admission that Lindh was an innocent bystander. He was neither a bystander nor,

in any respect can he be described as innocent," the U.S. attorneys prosecuting Lindh wrote in their filing with U.S. District Judge Thomas Ellis.

Spann was killed Nov. 25 in the uprising at the Qala-e-Jangi prison, where hundreds of Taliban prisoners, including Lindh, were held. His death came not long after Spann and another agent, now called CS-2 in court papers, tried to question a hog-tied and filthy Lindh, who remained mute.

Prosecutors filed their motion Tuesday to oppose efforts by Lindh's lawyers to move the scheduled Aug. 26 trial from Virginia to San Francisco and to dismiss charges against him because of pretrial publicity. The prosecutors charged Lindh's lawyers with generating much of that publicity, saying they had courted the press as part of a campaign to picture him as a "sweet, gentle youth."

MAKING A LINK TO AGENT'S DEATH

As part of their legal skirmish to counter the image making of Lindh's lawyers, prosecutors connected him to Spann's death.

"Lindh was a member of a conspiracy to kill Americans," wrote the prosecutors, led by U.S. Attorney Paul McNulty and Assistant U.S. Attorney Randy Bellows.

The prosecutors then cited the law of conspiracy, which says, for example, that a person who drives a getaway car for bank robbers is part of the robber conspiracy and would be liable for murder if someone in the bank were killed during the holdup.

"By well-established conspiracy law, the murder of Mr. Spann . . . is attributable to all conspirators, and that is true whether they fired guns themselves or even knew that the uprising would take place," prosecutors argued in their court filing.

The fact that Lindh remained silent while the two agents tried to question him is even more damning, the government said. "In effect, they (the agents) provided Lindh what amounted to an extraordinary opportunity. . . . Lindh was being offered a last chance to extricate himself, to withdraw from, to renounce the conspiracy," the prosecutors wrote.

A few hours after Spann and CS-2 questioned Lindh, the uprising began and Spann was killed, along with hundreds of prisoners. Lindh survived six days in a prison basement, suffering leg wounds, and was captured on Dec. 1 by Northern Alliance forces who turned him over to U.S. custody.

Lindh's lawyers contend that he was never a member of Osama bin Laden's al Qaeda network, never fired a shot at Americans and had nothing to do with terrorism or the events of Sept. 11.

But the prosecution also addressed its position that Lindh, a convert to Islam, knew, if not before Sept. 11, then immediately after the terrorist attacks, that the people he had trained with at a camp associated with bin Laden were conspiring to kill Americans.

"The events of Sept. 11 bear directly on this prosecution: The events of Sept. 11 -- and Lindh's clear understanding of who was behind it -- prove that Lindh knew he was in league with a group of individuals dedicated to the murder of Americans," the government added.

If convicted of all 10 counts against him, including conspiracy, Lindh could face life in federal prison, plus 90 years.

ISSUE OF FAIR TRIAL

Most of the government filing was taken up with a rebuttal to the claim of Lindh's San Francisco defense team that statements to the media by Attorney General John Ashcroft and other top federal officials have made it impossible for Lindh to get a fair trial. The Justice Department also attacked the Lindh team's contention that a fair trial is nearly impossible in Alexandria, just a few miles from the Pentagon, where 189 people were killed by a hijacked jetliner on Sept. 11.

Lindh's lead lawyer, James Brosnahan, had undertaken a media campaign to overhaul his client's image before Ellis made it clear to both sides to keep quiet in late January.

"The defense team's efforts to use the media to alter public opinion can best be described as extensive, unrelenting, sophisticated and unabashed," the prosecutors wrote.

They cited several statements made by Brosnahan, who was hired by Lindh's parents, Frank Lindh and Marilyn Walker, to represent their 21-year-old son while he was being held in Afghanistan. Brosnahan protested that the government wouldn't grant him or Lindh's parents access to his client, and he blistered Ashcroft for repeated tough talk about his client.

"He chose to embrace fanatics, and his allegiance to those terrorists never faltered," Ashcroft said of Lindh in January. "Terrorists did not compel John Walker Lindh to join them. John Walker Lindh chose terrorists."

Such statements led Brosnahan, who has tried many high-profile cases, to say he had never seen such prejudicial comments from a high-ranking government official.

In fact, the prosecutors said Tuesday, it was Brosnahan and Lindh's parents who courted the press to attack the government and portray the defendant "as a gentle, sweet youth, as a devoted practitioner of his faith, and as a loyal American."

As for Lindh's bid to move his trial to San Francisco, the prosecutors objected to the defense contention that a jury in Alexandria would be any less fair to Lindh than a panel anywhere else.